' Shazia Nadeem, petitioner and respondent No.7 Nadeem Dar are husband and wife. She is owner of the house No.1303 Street No.63, Sector-II, Gulshanabad Adiala Road, Rawalpindi, as evident from the title deed annexed as Annex-A.
2. It is stated that on 31-12-2002 at 4 p.m., the petitioner took herminor children to their tutor for tuition and when she returned back at home, respondent No.7 alongwith some persons and Ghunda elements took the possession of the petitioner's house alongwith other valuable articles.
When the petitioner asked respondent No.7 about his illegal act, he took out his pistol and threatened .The petitioner to leave the premises, otherwise she would be murdered. In the meanwhile, respondent No.8 Mirza Zaman Raza, Inspector, District Police Rawalpindi and respondent No.12 Imran Qasim S.I. Motorway Police, Islamabad, alongwith 8/10 policemen reached at the spot and compelled her to leave the said house in three cloths. The matter was reported to the Rescue-15. No action was taken. She reported the matter to Incharge Chowki, Adyala, Rawalpindi, respondent No.4 but in vain. She submitted another application Annex-B to the D.I-G.
Rawalpindi, on which an inquiry was conducted by ASP, City, Rawalpindi, respondent No.6.
Therefore, petitioner moved an application before the learned Sessions Judge, Rawalpindi, on 29- 4-2003 for seeking direction for registration of the case against the culprits. Despite the fact that report of the Inquiry Officer (ASP City) dated 21-5-2003, was in favour of the petitioner, learned Additional Sessions Judge declined the petition of the petitioner vide his order dated 5-7-2003.
3. Respondent No.3 S.H.O. Police Station Saddar Berooni, Rawalpindi, was directed to file report and parawise comments vide order dated 17-10-2003. It was also directed that S.H.O. Shall personally appear in Court on 3-11-2003. In pursuance of the order dated 17-10-2003, Inspector, Muhammad Ashgar S.H.O., has appeared. Hethat he will look into the contents of the application alongwith report ,f the Inquiry Officer (ASP City) dated 21-5-2003 and if a cognizable case is made out against the culprits whosoever he may be he shall proceed in accordance with section 154, Cr.P.C. To register the F.I.R. Learned A.A.-G. Is of the opinion that from the contents of the application submitted by the petitioner, the police was under obligation to exercise jurisdiction under section 154, Cr.P.C.
4. On behalf of the respondent No.7 Nadeem Dar, husband of the petitioner, Malik Waheed Anjum, Advocate, contends that the writ petition is not maintainable because the order of Additional Sessions Judge, dated 25-7-2003 through which he had refused to issue directions for registration of the case is revisable under section 439, Cr.P.C. Further contends that there was a matrimonial dispute between the husband and wife, therefore, the petitioner has left the house according to her own sweet will, therefore, no cognizable case was made out from the contents of the application and the petition has been filed with mala fide intention to deprive the respondent Nadeem Dar from his lawful ownership of the house which he purchased in the name of the petitioner on the basis of registered sale-deed 25-6-2002. The sale-deed in the name of the petitioner was Benami in respect of which a civil suit had already been filed in Court, and the house has been rented out by the respondent.
5. Learned counsel for petitioner contends that matrimonial dispute between husband and wife did not call for interference of the police and respondent Nadeem Dar and his associates to deprive the petitioner lady from her lawful ownership and possession of the house. The culprits alongwith police officials committed the offence, which fact has been confirmed by ASP in his inquiry report and that Inspector Zaman Raza has been exonerated during the inquiry by ASP because he is relative ofthe respondent No.7 Nadeem Dar. The house could have not been rented out, by taking forcible possession from the petitioner and her minors children.
6. I have heard the learned counsel for the parties and perused the record with their assistance.
There is no dispute about the fact that petitioner is owner of house No.1303 Street No.63, Sector-II, Gulshanabad Adiala Road, Rawalpindi on the basis of sale-deed dated 20-8-2002 (Annex-A); whether petitioner is real owner or Benami is a question to be decided by the Civil Court.
Respondent No.7 (Nadeem Dar) had no lawful authority to dispossess the petitioner and her minors children forcibly from her house through the police or his criminal associates. The matrimonial dispute between husband and wife and the pendency of the civil suit do not give right to the police or culprits to take the law in their own hands. Petitioner had submitted an application No.1226C dated 11-4-2003 on which the DPO deputed the ASP City to make an inquiry about the incidence.
Prior to that the matter was reported to Rescue-15. ASP City also made a report in favour of the petitioner. This is a very serious matter in which due to a family dispute a lady has been deprived of her lawful ownership and possession of the house and articles by breaking the locks with the help of police and other criminal associates.
7. I have examined the order of the learned Additional Sessions Judge refusing to issue direction for registration of the case. This order is not passed under any provision of Code of _Criminal Procedure, therefore, the same is not revisable under section 439, Cr.P.C. Learned Additional Sessions Judge recording the finding that "litigation is pending; the petitioner has taken contradictory stand and version in his different applications submitted to the police; that respondent Nadeem Dar is still husband of the petitioner and entrance of husband in the house of his wife does not constitute an offence; that the grievance of the petitioner is also against local police of the same police station which according to her assisted respondent No.7 to commit the offence and if so, even if case is registered, the apprehension of the petitioner would remain there against police official, who is case of registration of the case will conduct the investigation." I may observe here that the above stated findings are not relevant in the context of the case and not warranted under the law. Learned Additional Sessions Judge under the law had to see that whether from the contents of the application of the petitioner submitted to the police, a cognizable case was made out and if so why S.H.O. Has not exercised his jurisdiction under section 154, Cr.P.C.
8. In this view of the matter, S.H.O. Police Station Saddar Bairooni is directed to look into the contents of the application dated11-4-2003 of the petitioner submitted to the police and also inquiry report of the ASP City and register a case against all the culprits whether employees of police or otherwise. After registration of the case, a copy of F.I.R. Shall be submitted to Deputy Registrar (Judicial) of this Court. DPO/SSP, Rawalpindi, is directed to entrust the investigation of the case to an officer not below the rank of DSP or ASP to investigate the case.
9. In a civilized society no person can be allowed to take advantage of his public position for redressness of his personal grievance particularly the police, who is custodian of the citizen rights, if allowed to trespass in the houses or to provide an assistance to the criminals or help them to take law in their own hands, there will be no rule of law but anarchy in the society. Further no Court may be able to enforce the law. Respondent No.7, Nadeem Dar, was under legal obligation to wait for the verdict of the Civil Court on the suit which he filed against the petitioner regarding her sale- deed instead he took the law in his own hand with the help of his associates and police which was not warranted under the law. Therefore, the action of the respondents to take the forcible poisession of petitioner house and bringing the petitioner lady and her minors children on road is declared to be without lawful authority, S.H.O., Police Station, Saddar Bairooni and respondent No.7 Nadeem Dar shall restore the possession of the house of the petitioner within 15 days from today.
10. With the above observation and direction, this writ petition is disposed of.